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Monday, June 10, 2013

This Week in History: Republicans use threat of "nuclear option" to confirm conservative judges to D.C. Circuit and other appellate courts

Over the past week, a chorus of congressional Republicans has criticized President Obama for fulfilling his constitutional duty to nominate qualified individuals for the three open seats on the D.C. Circuit Court of Appeals, the second-highest court in the land. Eight years ago this week, they were singing a far different tune.

On May 23, 2005, the so-called Senate “Gang of 14” agreement set the stage for up-or-down votes on a number of extremely conservative Republican judicial nominees. That agreement paid almost immediate dividends for a slate of conservative judges, particularly during this week in 2005.

On June 8, 2005, the Senate confirmed Janice Rogers Brown – who once referred to the onset of the New Deal as the “triumph of our own socialist revolution” – to the D.C. Circuit Court of Appeals. The next day, the Senate confirmed William Pryor to the 11th Circuit; among other things, Pryor had defended Alabama’s power to execute juveniles and the mentally retarded as the state’s Attorney General. Less than a week later, on June 14, the Senate confirmed Thomas Griffith to the D.C. Circuit. In all, five circuit court judges were confirmed within a week, two of whom still sit on our nation’s second most important court – the D.C. Circuit Court of Appeals.

Today, Republicans have engaged in all manner of obstructionism to prevent President Obama’s highly qualified and diverse judicial nominees from ever taking the bench. Nowhere is this more apparent than the D.C. Circuit. Caitlin Halligan was filibustered twice before asking the President to withdraw her nomination, even after she received the American Bar Association’s highest possible rating of unanimously well qualified.
Sri Srinivasan waited nearly a year before he was unanimously confirmed to the D.C. Circuit last month.

Now, Republicans have pushed forward a bill to reduce the size of the D.C. Circuit by three seats, seeking to deny President Obama any opportunity to install judges with a clear respect for the rule of law on a court that is currently dominated by radical conservatives. Although the confirmations of Janice Rogers Brown and Thomas Griffith brought the D.C. Circuit’s membership to 11 judges, Republicans have apparently decided that with President Obama in office, eight is enough.

President Obama has nominated three highly qualified, uncontroversial nominees to the D.C. Circuit. At the same moment in President George W. Bush’s second term, facing a lower court workload, Republicans threatened to change the rules in order to fill all 11 seats on the D.C. Circuit. While the nominees put forward by President Bush were hyper-partisan, President Obama’s nominees have a clear record of exceptional qualifications and should be swiftly confirmed.